WALLER v. SOUTHERN PACIFIC COMPANY (1966)

John F. Waller, a former train dispatcher for the Southern Pacific Company, sues the railroad under the Federal Employers' Liability Act, alleging negligence of the railroad's medical personnel in returning him to a job whose work stress caused cumulative aggravation of his arteriosclerosis to the point of disability.   A jury awarded Waller damages of $35,000.   Defense motions for judgment notwithstanding the verdict and for new trial were denied.  Principal ground raised by the railroad's appeal is absence of any evidence to justify the verdict.

 A reviewing court's appraisal of the evidence to determine whether a jury question exists in a FELA case is governed by the rule or test announced in Rogers v. Missouri P.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.  Judicial inquiry is narrowly limited to the single inquiry “whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death * * * ” (Rogers v. Missouri P.R. Co., supra, 352 U.S. at p. 506, 77 S.Ct. at p. 448;  see also Dennis v. Denver & Rio Grande Western R.R. Co., 375 U.S. 208, 210, 84 S.Ct. 291, 11 L.Ed.2d 256;  Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 116, 83 S.Ct. 659, 9 L.Ed.2d 618;  Inman v. Baltimore & Ohio R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198;  Webb v. Illinois Central R. Co., 352 U.S. 512, 516, 77 S.Ct. 451, 1 L.Ed.2d 503;  Annot. 4 L.Ed.2d pp. 1787–1818;  Note, 98 A.L.R.2d 653 at pp. 663–677.)   It is also said:  “Only when there is a complete absence of probative facts to support the conclusion reached [by the jury] does a reversible error appear.”  (Dennis v. Denver & Rio Grande Western R.R. Co., supra, 375 U.S. at p. 210, 84 S.Ct. at p. 293, quoting from Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916.)

Mr. Waller had been employed as a train dispatcher for Southern Pacific Company and other railroads since 1942.   From 1954 onward he worked in the Sacramento office of Southern Pacific as a train dispatcher on the 4 p.m. to midnight shift.   In 1950 he entered the Southern Pacific General Hospital in San Francisco, suffering from sharp chest pains which radiated into his arms.  The hospital record notes some enlargement of the heart (which was not beyond the range of average size), mild coronary insufficiency, normal heart sounds, an ulcer possibility plus spasms of the cardiac sphincter (a portion of the digestive, not coronary, tract) possibly incited by heavy smoking.   A 1958 entry in the hospital records included a diagnosis of hypertensive vascular disease.   In May 1959 a private physician suggested a thorough examination at the Southern Pacific hospital.   Plaintiff was admitted to the hospital and placed under the care of Dr. Bradford Simmons, a general surgeon.   A diagnosis of general arteriosclerosis was made.   A bilateral sympathectomy was performed in the hope of relieving arterial construction in his legs.   A rule of the railroad prevented any hospitalized employee from returning to work without medical authorization.   Waller was discharged from the hospital on June 2, 1959, with a certificate evidencing his fitness for duty.   He resumed his work in Sacramento as a train dispatcher on June 8, 1959.

As a train dispatcher Waller issued and recorded orders for the movement of all trains in an assigned area.   Train movement orders were carried by radio.  There was evidence, both lay and medical, justifying a jury conclusion that the position was exacting and exposed its occupant to tension or emotional stress.

In November 1961 Mr. Waller returned to the Southern Pacific hospital for a checkup.   He complained of severe chest pains after exercise.   Although testing and subsidiary diagnoses appear to have been conducted by other doctors, Dr. Simmons and Dr. Charles J. Monahan, also a general surgeon, were primarily responsible for diagnosis and treatment.   The doctors concluded that the patient had definite coronary artery insufficiency;  that he had angina pectoris symptoms, caused by worsening of the arteriosclerotic condition;  that the stress of his work might culminate in a heart attack;  that he could not safely return to work.   In December 1961 he was informed by the company that he would not be restored to duty as a train dispatcher without permission of the Chief Surgeon at the Southern Pacific General Hospital.   Waller was 51 years old at the time.

During the early months of 1962 Waller made efforts to persuade company officials to permit his return to work.   He sought support in a medical diagnosis contradicting that of the doctors at the Southern Pacific hospital.  His efforts were unsuccessful.   He filed this action in July 1962.   On the basis of the parties' pretrial conference statements, the pretrial order described the negligence charge as one centering upon the company's action in returning Waller to work in June 1959 and continuing him as a train dispatcher after that date.

Southern Pacific does not question the agency relationship between it and the physicians on the staff of the Southern Pacific General Hospital.   In McGuigan v. Southern Pacific Co., 129 Cal.App.2d 482, 277 P.2d 444, the court considered that relationship in the light of the fact that the hospital is in many ways a separate entity and an independent contractor.   Essentially, McGuigan holds that the railroad utilizes the hospital doctors to determine occupational fitness of the railroad's employees, thus gaining a financial benefit from the doctors' actions and assuming liability for medical negligence.  (129 Cal.App.2d at pp. 493–496, 277 P.2d 444.)   While some aspects of the relationship between the railroad and the hospital may have altered since 1954 when McGuigan was decided, no change appears in the essential basis for the railroad's vicarious liability (see also, Sinkler v. Missouri P.R. Co., 356 U.S. 326, 330–332, 78 S.Ct. 758, 2 L.Ed.2d 799).

Unlike most FELA cases, this suit does not rest upon a charge of employer negligence in the operation of trains or the maintenance of safe working conditions.   Immediate actors in the employer's alleged wrong were the doctors at Southern pacific General Hospital, whose claimed negligence lay in exposing the employee to a reasonably foreseeable risk of harm.  (Gallick v. Baltimore & Ohio R. Co., supra, 372 U.S. at p. 117, 83 S.Ct. 659;  Rogers v. Missouri P.R. Co., supra, 352 U.S. at p. 503, 77 S.Ct. 443;  Lillie v. Thompson, 332 U.S. 459, 462, 68 S.Ct. 140, 92 L.Ed. 73.)   It is not charged that Mr. Waller's train dispatching job was intrinsically perilous.   It could possess peril only in relation to the occupant's deteriorating physical condition.   From the employee's standpoint, two kinds of harm confronted him:  an acute heart attack and further progression of his arteriosclerosis.   The former has never occurred, only the latter.   Since the claim of compensation does not stem from a heart attack, the employer's negligence or care in exposing him to that particular harm of guarding him from it is not in issue.¹  The harm which did occur—and its occurrence is not disputed—is the progress of arteriosclerosis to the point of disablement.   The jury found the employer negligent.   Necessarily implied in that finding is another:  that the risk occurred at work;  that the increased arteriosclerosis was not entirely a consequence of the natural or nonoccupational progress of the disease;  rather that the emotional stress of his train-dispatching duties was at least a partial factor in its acceleration or aggravation.

Medical testimony was the only evidence bearing upon the occupational character of Mr. Waller's increased arteriosclerosis.   The defense called three doctors.   Two, Doctors Bradford Simmons and Charles J. Monahan, were surgeons on the staff of the Southern Pacific General Hospital and had played principal roles in the prognosis which barred him from further work as a train dispatcher.   The third, Dr. John B. Reardan, was a specialist in internal medicine.   Both the Southern Pacific doctors testified to the general effect that the patient's angina pectoris or chest pains occurred because not enough oxygen-carrying blood was supplied to the heart;  that this inadequacy in turn resulted from the progress of the patient's arteriosclerosis;  that they refused to permit Mr. Waller's return to duty as a train dispatcher in 1961 because the stress of his work might cause a spasm of the coronary arteries and the formation of a blood clot, thus producing a heart attack.   All three doctors called by the defense expressed the opinion that there is no relationship between emotional stress and the progress of arteriosclerosis.

Plaintiff's medical witness was Dr. Abraham McIntosh.   Although he had seen plaintiff professionally on several occasions, he had never attempted a diagnosis of his heart condition.   Dr. McIntosh responded to a series of hypothetical questions put to him by plaintiff's trial counsel.   His testimony on direct examination will be crucial to the outcome of this appeal.   Thus we do not attempt to paraphrase it, but set out in the margin those portions of his direct examination which seem particularly significant.²  A question and answer during the course of Dr. McIntosh's cross-examination have additional significance.³

 There are two reasons for giving crucial significance to Dr. McIntosh's testimony.   First, the issue of medical causation are within the reach of lay experience.  (Davis v. Memorial Hosp., 58 Cal.2d 815, 817–818, 26 Cal.Rptr. 633, 376 P.2d 561;  Inouye v. Black, 238 Cal.App.2d 31, 34, 47 Cal.Rptr. 313.)   Others are more esoteric, demanding scientific evidence to support the fact finder's conclusion.  (Siverson v. Weber, 57 Cal.2d 834, 837–838, 22 Cal.Rptr. 337, 372 P.2d 97;  Peter Kiewit Sons v. Industrial Acc. Com., 234 Cal.App.2d 831, 838–839, 44 Cal.Rptr. 813;  Prosser, Torts (3d ed.) p. 245;  2 Jones on Evidence (4th ed.) p. 742.)   Medical testimony is indispensable “where the truth is occult and can be found only by resorting to the sciences.”  (State Comp. Ins. Fund v. Industrial Acc. Com., 195 Cal. 174, 184, 231 P. 996, 1000.)   In City and County of San Francisco v. Industrial Acc. Com., 117 Cal.App.2d 455, 256 P.2d 81, the court annulled a finding of industrial causation of a fatal heart attack, asserting the indispensability of medical evidence.   Where a traumatic event occurs, lay jurors may find causation in fact, rejecting medical opinion that the injury had another source.  (See Davis v. Memorial Hosp., supra, 58 Cal.2d at p. 817, 26 Cal.Rptr. 633, 376 P.2d 561.)   Again, where expert opinions differ, a jury may select among them.⁴

 Here there was no external event, but a nontraumatic, progressive ailment allegedly promoted in some part by an environmental condition to which the employer had negligently exposed the subject.   The relationship between work stress and cardiac ailments is one of the major problems of modern medical jurisprudence.   It has occasioned much medicolegal study as well as a proliferation of appellate decisions.⁵  With few exceptions the court decisions involve an acute cardiac incident, such as coronary thrombosis or occlusion, resulting either in death or disabling myocardial infarction, e.g., Wergin v. Monessen Southwestern Ry. Co., 3 Cir., 258 F.2d 806;  Walters v. Industrial Acc. Com., 57 Cal.2d 387, 20 Cal.Rptr. 7, 369 P.2d 703;  Lumbermen's Mutual Casualty Co. v. Industrial Acc.Com., 29 Cal.2d 492, 175 P.2d 823;  McGuigan v. Southern Pacific Co., supra, 129 Cal.App.2d 482, 277 P.2d 444;  Creamer v. Ogden Union Ry. and Depot Co., 121 Utah 406, 242 P.2d 575.   Only in rare cases have the courts considered disability claims for work-related progression of chronic coronary artery disease unaccompanied by heart attack (see Jenkinson v. Clemons (La.App.) 144 So.2d 181;  Cloud v. Natl. Surety Corp. (La.App.) 166 So.2d 31).   In none coming to our attention have the courts shown any propensity to permit reliance on lay testimony or lay experience.   The medicolegal literature (fn. 5 supra) demonstrates that the etiology of arteriosclerosis is abstruse and beyond the unguided capabilities of laymen.   We conclude that the jury could not rely on its own judgment of causation;  that the implied finding of occupational causation required support among the opinions of the medical experts.

[4] We arrive at the second reason for emphasizing the role of Dr. McIntosh's testimony.   In the review of the jury's implied finding of work-related disability, the appellate court's function ends when it discovers the requisite degree of proof, contradicted or uncontradicted, supporting it.  (Memorial Hosp. Assn. of Stanislaus County v. Pacific Grape, etc., Co., 45 Cal.2d 634, 635, 290 P.2d 481, 50 A.L.R.2d 442.)   We look only to the evidence supporting the jury's finding, not that opposed to it.   The testimony of the defense experts demonstrates that Dr. McIntosh's testimony stands as the sole pillar offering any support—however arguable or slight—for the conclusion that the emotional stress of train dispatching was an aggravating or accelerating factor in the progress of Mr. Waller's arteriosclerosis.⁶

 In common law negligence actions, causation analysis commences with an inquiry into causation in fact, that is, whether the injury would have occurred but for the defendant's negligence;  following which, the inquiry turns to the question of proximate cause.  (Prosser on Torts (3d ed.) pp. 242, 282;  2 Witkin, Summary of California Law, p. 1484.)   The criterion formulated in the Rogers case has markedly altered orthodox concepts of causation and diminished the role of causality in appellate review of FELA verdicts.  (GIbson v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 246 F.2d 834, 837;  Atlantic Coast LIne R.R. Co. v. Barrett (Fla.) 101 So.2d 37;  Prosser on Torts (3d ed.) p. 560.)   Nevertheless, the FELA decisions continue to demand some evidence, circumstantial or direct, that the employer's negligence had an influence or effect in causing plaintiff's injury.  (Inman v. Baltimore & Ohio R. Co., supra, 361 U.S. 138, 80 S.Ct. 242;  Shea v. New York, New Haven & Hartford R. Co., 316 F.2d 838, 840, 99 A.L.R.2d 1182;  Dessie v. Pennsylvania R.R. Co., 3 Cir., 251 F.2d 149, 151;  see memorandum of Mr. Justice Frankfurter, Elgin, Joliet & Eastern Ry. Co. v. Gigson, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193.)   Thus it is justifiable to hold, with Kimbler v. Pittsburgh & Lake Erie R.R. Co., 3 Cir., 331 F.2d 383, 385, that the employer “will not be held liable for injuries resulting from causes which cannot be eliminated through use of due care.”

The Rogers test of evidence sufficiency was formulated in the context of a FELA action involving trauma-producing external events.   Here, in contrast, the disease was insidious, demanding medical expertise for the revelation of its sources.   If it had environmental sources, these were beyond lay detection.  The Rogers rule does not enthrone juries as impregnable arbiters of medical etiology.   It permits reviewing courts to inquire whether the proofs justify with reason a finding of work relationship, however slight.   As we interpret Rogers, it does not preclude analysis of the plaintiff's medical evidence both verbally and from a judicial perspective gained by examination of medicolegal commentary.

 As a general proposition, weighing expert testimony is a function of the fact trier, outside the ambit of judicial review.⁷  More accurately, the proposition should be stated in terms of relative weight, that is, where the fact trier has chosen between expert testimony and factual evidence ⁸ or between the inconsistent opinions of warring experts.⁹  In rare cases, however—and this is one of them—a preliminary question arises:  What did the expert mean by his testimony?   His real meaning may be camouflaged by verbal misunderstandings and colored by the wishfully conceived hypothetical questions of trial counsel.   When the sources of misunderstanding are submitted to the scalpel of reasonable appraisal, the essential character of the expert's opinion is revealed.   Fully revealed, his opinion may not truly support the verdict which rested on it, no longer clash with the opinions of other experts.

The danger of misapprehended expert testimony is nowhere more acute than in matters of medical causation.   Compensability of occupational disease claims often necessitates the search for a verbal standard to express some threshold degree of work contribution.   Some of the leading decisions on compensability of heart ailments illustrate both the search and its products.  (See Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 141 A.2d 761, 767–768;  Dwyer v. Ford Motor Co., 36 N.J. 487, 178 A.2d 161, 166;  see also McNiece, op. cit. supra fn. 5, at pp. 118–119.)   Chief Justice Weintraub of New Jersey has remarked:  “The problem is one of proof.”  (Dwyer v. Ford Motor Co., supra, 178 A.2d at p. 174, concurring opinion.)   There is a parallel problem, a problem of expressing the proof, whatever its weight, in terms commonly understood by all involved in the decisional process—medical witnesses, lawyers, judges and jurors.   The doctor has learned to live with uncertainty;  the other participants eagerly seek its opposite.   The doctor speaks of causal factors in etiological terms, inquiring into the array of influences (ultimate and immediate, passive and active, acknowledged and possible) which combine to produce the result.¹⁰  The lawyer or judge refers to cause as a factor upon which legal responsibility depends.¹¹  Each profession uses causal verbiage in the coloration of its own bias.   The law hopefully solicits the doctor to speak in its own language but he may find he cannot honestly do so.¹²  During the examination of medical witnesses, each profession addresses the nonprofessional jurors, using similar words but with different meanings;  following which, the judge instructs the jury according to the law's meaning but not the doctors';  finally, on a motion following the verdict or on appeal, reviewing judges attempt to ascertain which professional used which words in which sense.

 An approach which pierces verbal barriers and arrives at the heart of the matter is that adopted by the Court of Appeals of New York:  “The probative force of an opinion is not to be defeated by semantics if it is reasonably apparent that the doctor intends to signify a probability supported by some rational basis.”  (Miller v. National Cabinet Co., 8 N.Y.2d 277, 204 N.Y.S.2d 129, 168 N.E.2d 811, 813.)   Conversely, the probative force of an opinion is not to be created by semantics if it is reasonably apparent that the doctor did not intend to signify a probability supported by some rational basis.   Dean Harold McNiece (op. cit. supra fn. 5, at p. 136) suggests that an expert's testimony should be examined in its total meaning, rather than word-by-word.

The quest for the meaning of scientific testimony requires reviewing judges to gain some information, however rudimentary, on the topic at hand.   The process entails no violation of traditional taboos against appellate resort to new evidence and against use of scientific writings as proof.   The process, rather, is one of acquiring an instrument with which to probe for real meaning.  Professor Karl N. Llewellyn has observed that the fact material before an appellate court includes not only the trial record and common knowledge, but “a sometimes startling selection from what the court sees in the kaleidoscope of life outside.”   He inquires whether the decisional process “should not be bent toward insuring, inside the appellate judicial institution itself, the development of such knowledge as, to paraphrase Brandeis, is essential to understanding, just as understanding should precede judging.”  (Llewellyn, The Common Law Tradition, Deciding Appeals, pp. 28, 333 (1960).)  The late Morri Cohen said:  “It is not to credit of any system that its chief exponents can put their amateurish opinions against those of physicians or economists who have given these questions careful scientific study.   Yet the law cannot simply and uncritically accept all the opinions of economists or sociologists.”  (Law and Scientific Method, reprinted in Cohne, Law and the Social Order (1933).)  (Cohen's second sentence, of course, impliedly encompasses the opinions of medical doctors.)   Another writer notes the danger of the judge's “consulting the wrong boot-black,” but suggests a greater evil in “cutting the judge off from any usable erudition in his difficult task of appraising expert testimony.”  (Smith, Scientific Proof and Relations of Law and Medicine, 23 B.U.L.Rev. 141, 177 (1943);  see also Richardson, Doctors, Lawyers and the Courts, p. 305 (1965);  Osborn, Reasons and Reasoning in Expert Testimony, 2 Law & Contemp.Prob. 488, 493 (1935);  additional references:  2 Wigmore on Evidence (3d ed. 1940) pp. 645–646, § 563, note 2.)  If law and medicine are to work well together, then judges must not mistake doctor-language for lawyer-language;  nor should doctrinal barriers prevent them from resorting to those general studies—however, elementary to the doctor—necessary to bare the guts of meaning beneath the skin of the doctor's words.¹³

In a preface to Dean McNiece's study (op. cit. supra fn. 5, pp. x–xiii) Dr. Paul D. White, the eminent heart authority, describes the general syndrome in lay terms.   The middle-sized arteries of the coronary artery system are the location of the serious disease of atherosclerosis (sometimes used interchangeably with arteriosclerosis).   The disease is a thickening of the inner arterial walls by the deposit of fibrous tissue and fatty material.  Progress of the disease gradually obstructs the artery channel, much earlier in some individuals than others.   Coronary heart disease describes obstruction of the blood flow through the coronary arteries when it results in an inadequate supply of blood to the heart.   The inadequacy causes the symptom called angina pectoris, an oppressive pain under the breastbone.   Persons suffering from coronary atherosclerosis are vulnerable to heart attack, occasioned either by coronary occlusion or by formation of a thrombosis or blood clot.   It is said that an important degree of atherosclerosis of the coronary arteries is present in approximately fifty percent of all American males over the age of 45.  (Lawyers' Medical Cyclopedia (1964 Supp.Serv.) pp. 590.30–590.31.)

In attempting to isolate and identify occupational factors in heart ailments, medicolegal commentary draws distinct lines between chronic coronary artery disease, on the one hand, and its acute precipitation in the form of a heart attack, on the other;  between physical exertion and psychological stress as contributing factors.   The inquiry is not—into the causative factors of the disease and the relative importance of each from the medical standpoint, but simply whether occupation contributed, in the slightest, to the result.  (McNiece, op. cit. supra fn. 5, p. 12.)   Despite some medical uncertainties, practically all courts and compensation commissions accept the view that physical work strain, coupled with preexisting coronary artery disease, can “cause” fatal or disabling heart attack.¹⁴  A sizeable body of legal authority parallels medical opinion that work-connected worry, anxiety or tension may precipitate an acute cardiac incident.  (McNiece, op. cit. supra fn. 5, pp. 25–33;  see Fireman's Fund Indem. Co. v. Industrial Acc. Com., 39 Cal.2d 831, 834, 250 P.2d 148.)   Only a few decisions involve claims for disabling chronic heart disease, and those coming to our attention have denied compensation, if only by applying legal standards inappropriate here.  (Jenkinson v. Clemons, supra (La.App.) 144 So.2d 181;  Cloud v. National Surety Corp., supra (La.App.) 166 So.2d 31.)   The study conducted by a committee of the American Heart Association skirted inquiry into the possible effects of work strain and trauma upon the long-term development of atherosclerosis.  (See Report (op. cit. supra fn. 5) reproduced in Lawyers' Medical Cyclopedia (1964 Supp.Serv.) p. 590.26.)   Dr. H.B. Sprague, former president of the American Heart Association, declares that the assumption of stress as a cause of atherosclerosis is scientifically unwarranted.¹⁵  Another medical writer states that the exact cause of atherosclerosis is unknown (heredity, diet and age being significant factors) and cites Dr. Sprague for the proposition that its development cannot be related to employment.¹⁶  Other commentators state that the relationship is controversial or uncertain.¹⁷  Dr. White urges research to investigate possible relationships between emotional stress and atherosclerosis.¹⁸

There is, in short, no medical knowledge to support the assumption that emotional stress contributes to arteriosclerosis, either in the onset of the disease or as an exacerbating element.   With that recognition we turn to an appraisal of Dr. Mcintosh's testimony (fn. 2 supra).

To a major extent, his statements were shaped by the hypothetical questions framed by plaintiff's counsel.   Some of the assumptions utilized in these questions find only shaky support in the evidence.   Since there was no objection to the questions, we refrain from detailed dissection.   Generally, however, the hypothetical questions failed to distinguish between two kinds of injury—increased arteriosclerosis, which did occur, and heart attack or heart failure, which did not.   Both kinds of injury were merged in undifferentiated references to the hypothetical patient's “condition.”   Essentially, Dr. McIntosh's testimony was an expression of concurrence with a principal point made by the doctors of the Southern Pacific General Hospital—that the job was risky because it exposed the employee to the potential of a heart attack.

Questions ONE and TWO were designed to show the reasonably foreseeability of aggravation of the patient's “condition” resulting from his return to a stressful job.   Although the doctor's reply to the first question was noncommittal and ambiguous, his response to the second is a statement of opinion that the person should not be returned to stressful work because, as the arteriosclerosis progressed, work tension increased the possibility of a heart attack.   Arguably, the doctor's response to question THREE might indicate some support for the notion of tension-related aggravation of the chronic artery “condition.”   Asked in question FOUR for an explanation, the doctor demonstrated that such was not his meaning.   His response indicates that he was speaking of the ever-increasing danger of a heart attack.   The heart attack, of course, did not occur.

In questions FIVE and EIGHT the examiner sought to establish a relationship between occupational stress and aggravation of the patient's “condition.”   To question FIVE the doctor responded, “ * * * repeated stress in situations as you described, would certainly help * * * accelerate the deterioration of his heart.”   In response to question EIGHT, he affirmed, in the disjunctive, that returning the patient to work would either aggravate his “condition” or endanger his life.   From the hypothetical question, it is impossible to tell whether the doctor was speaking of artery disease or heart attack or both.  From his response to question SEVEN, his intent becomes clear.   He was referring to the danger of “sudden death from cardiac failure” and to the cumulative deterioration ensuing from heart attacks, not the danger of additional hardening of the coronary arteries.

In response to question SIX, the doctor said in effect that a heart attack was just as possible in 1959, when the doctors cleared Mr. Waller for duty, as in 1961 when they refused to do so.

 Concentration on isolated bits and pieces of the doctor's language might portend a picture of stress-related arteriosclerosis.   When the jigsaw pieces are all in place and viewed whole, a quite different picture emerges.  One sees in Dr. McIntosh's testimony no opinion that the emotional stress of plaintiff's train-dispatching duties might have been a contributing factor in aggravating his coronary artery condition.   Indeed, the doctor's answers on cross-examination to questions touching the causes of the disease (fns. 3, 12) demonstrate that he was fully aware of the etiology of coronary artery disease and was uttering no opinion not generally accepted by medical science.

We conclude that Dr. McIntosh did not intend to signify any probability that occupational stress was a contributing factor in the acceleration or aggravation of Mr. Waller's coronary artery disease.   His testimony does not justify with reason the jury's implied finding of an occupational factor, however slight, in producing the injury in suit.   There was a complete absence of probative facts to support the finding that the employer's agents negligently exposed him to that injury when they permitted his return to work in 1959.

In the appellate analysis of negligence, an approach via the reasonable foreseeability of harm may parallel the causation approach.   There was no request here for a special jury verdict, finding whether or not the Southern Pacific doctors should have foreseen that plaintiff's continued exposure to train-dispatching duties might contribute to the aggravation of his artery hardening.  (Cf. Gallick v. Baltimore & Ohio R. Co., supra, 372 U.S. 108, 83 S.Ct. 659.)   Although the absence of evidence of occupational relationship eliminates the need of foreseeability inquiry, it is difficult to avoid the suggestion that the jurors held the Southern Pacific doctors to a degree of clairvoyance far beyond that of the physicians who returned president Dwight Eisenhower and Senator Lyndon Johnson to duty in 1955.   No reported decision coming to our attention has held an employer liable for the progress of his employee's progressive arteriosclerosis.

Other appeal contentions attack the hypothetical questions used by plaintiff's counsel in examining Dr. McIntosh and assign certain jury instruction as error.   These contentions we need not consider.

The judgment is reversed with directions to the trial court to enter judgment for the defendant notwithstanding the verdict.  (See New York, New Haven & Hartford R.R. Co. v. Henagan, 364 U.S. 441, 81 S.Ct. 198, 5 L.Ed.2d 183.)

FOOTNOTES

1.   Compare McGuigan v. Southern Pacific Co., supra, 129 Cal.App.2d 482, 277 P.2d 444, sustaining a jury finding of negligence on the part of doctors at the Southern Pacific General Hospital where the employee, suffering from chronic artery disease, was cleared for physically demanding work culminating in a fatal coronary thrombosis.

2.   For the purpose of this opinion, we have attached number to the questions quoted in this note.ONE:  “Q  Well, let's see, can we put some of these factors which are already into evidence, into one general hypothetical question, Doctor, and I tell you in advance it's going to be rather long in order to put it, try to tie it all together.   Assuming that about a year and a half after you found the patient with a heart fifteen percent larger than it was expected to be, you examined him and found it ten millimeters larger than it was before, and assuming further that on the second examination, the patient gave a complaint of pain in the chest, radiating into the shoulders and into both arms, but more on the left than on the right;  and assuming further that on the second examination an electrocardiogram was suggestive of left coronary insufficiency;  and assuming further after the completion of the examination, a year and a half later, four prognosis was guarded for eventual outcome.   Would you have an opinion whether it would be reasonably foreseeable that the assignment of such a person to a job requiring great responsibility, stress and tension, would aggravate his condition?“A I would say this certainly would, with all of these findings, would show that he did have heart disease, and when you do have this type of problem, anything that would aggravate would just make the condition even worse.TWO:  “Q  Assuming, in addition to what we have said heretofore, that this same patient was seen in 1959, in May, and assuming further that he was still complaining of chest pains;  assuming further that you fond in 1959 that he had arteriosclerosis to such an extent that you'd have to do a sympathectomy to prevent pain in his legs;  and assuming further that the complaint of pain in the chest has not subsided but still recurs;  would you have an opinion as to the fitness of that person to do a job requiring stress and tension on a constant eight-hour basis, five days a week, and even assuming further that this requirement was even without lunch hour or other break.   Would you have an opinion as to the probability of that schedule aggravating or worsening the condition which you had found to exist?“A Well, these—this—anything that would aggravate here, I would say yes, that this person certainly would say yes, that this person certainly should not be placed in—in areas where he would be under tension, because persons who have coronary insufficiency usually are candidates for sudden death because of heart failure.   And over this period of time, this person would be more and more susceptible to the problem of sudden death from coronary insufficiency.THREE:  “Q  Would the assignment of such a person to a position requiring him to remain under tension, have a tendency to aggravate or hasten any fatal result or outcome, or total disability from cardiac insufficiency?“A Oh, yes, because the more insults the heart—the more insult to the heart, the more rapid is deterioration.FOUR:  “Q  Can you tell us, Doctor, why tension would tend to accelerate or hasten the breakdown or even the fatal result here?   What's the mechanism of the tension with relation to the heart?   How does it do the harm?  Why?“A Well, there is a person that's tense.   His body functions are just not—it's an abnormal function in that the heart beats faster, he breathes more rapidly, there is some spasm of the blood vessels that have to be overcome by the work of the heart.   All of these things combine to put more work on the heart and even on the body musculature itself in situations where there is a repeated external stimuli.“ * * * * *FIVE:  “Q  Well, assuming for the moment that the patient with the conditions that we have been talking about, was in 1959, in May of 1959, after the sympathectomy we have talked about and after there had been a prognosis reading ‘guarded for eventual outcome’ was returned to work as a train dispatcher, and this job required constant attention to train schedules to prevent the possibility of trains running together, seeing to it that each train went the direction it was supposed to go, and doing this kind of thing on a sustained eight-hour basis without interruption, would you have an option as to whether that work itself, assuming that it's constant and under tension and stress, would tend to hasten or accelerate or aggravate the man's condition so that he would be at a point where he could not work as a useful employee at all?“A Yes.   Because a damaged heart and repeated stress in situations as you described, would certainly help, or help in the—accelerate the deterioration of his heart.“ * * * * *SIX:  ‘'Q  * * * Assuming that you felt ‘that the occupation is one which has a great deal of responsibility and emotional stress involved, and it is felt that to continue this occupation it might aggravate the condition or even endanger the life,’ now assuming that that opinion was held in November or December of 1961, I want to know, do you have an opinion as to whether or not there is anything in any of the records to indicate that that opinion should not have been expressed in May of 1959?   In other words, if it would have hurt him in November of 1961, is there anything to indicate that it wouldn't also hurt him in May of '59?“A No, there isn't.   Because the same diagnosis was made in 1959 of arteriosclerotic cardiovascular disease with intermittent claudication.  The heart was involved and so were the legs.   And in 1961 the diagnosis was the same, of generalized arteriosclerosis, coronary insufficiency, peripheral vascular insufficiency, psoriasis, and high blood pressure.  The same things existed in '59 as existed in 1961.SEVEN:  “Q  Now, Doctor, we have in evidence a letter from Dr. Charles A. Monahan and introduced as Plaintiff's Exhibit 7, wherein he expresses the opinion that the condition that Mr. Waller has would make it impossible for him to do the job as a train dispatcher with safety, because he said it had great responsibility and emotional stress, and that if he continued to do it, it would aggravate his condition or even endanger his life.   Do you agree with that opinion?“A Yes, I do.   Because these patients who have angina pectoris, this is subject to sudden death from cardiac failure.EIGHT:  “Q  And do you have an opinion as to whether or not to return him to work in May of 1959 or June of 1959, would also aggravate his condition or endanger his life?“A Yes, I think with the evidence here of abnormality of the heart due to arteriosclerosis, this certainly would have.”

3.   “[DEF. COUNSEL]:  Q  Doctor, do you have an opinion as to the causes of arteriosclerosis?“A I don't know that the cause has been found.   There have been indicating conditions that predisposes, they have correlated it to, but I don't know.  To my knowledge I don't know that they have really found the cause of it.”

4.   Khan v. Southern Pacific Co., 132 Cal.App.2d 410, 414–415, 282 P.2d 78;  Sim v. Weeks, 7 Cal.App.2d 28, 40, 45 P.2d 350.   An appropriately ironic note is struck by the opinion writer in Greer v. Missouri State Highway Dept. (Mo.App.) 362 S.W.2d 773, 778, who quotes the poet Alexander Pope:  “Who shall decide when doctors disagree?”

5.  See, e.g., Report on the Effect of Strain and Trauma on the Heart and Great Vessels, American Heart Association, 26 Circ. 612 (1962); The Heart: A Law-Medicine Problem, Western Reserve Univ. (1957); Lawyers' Medical Cyclopedia (1964 Supp.Serv.) 569-590.85, Allen Smith Co.; Larson, Workmen's Compensation, s 38.30; McNiece, Heart Disease and the Law, Prentice Hall (1961); Denwicz, Stress- Caused Heart Attacks, 14 Cleve.-Marshall L.Rev. 322 (1965); Isaacs, Occupation, Trauma, and Cardiovascular Disease, 29 Ins.Counsel J. 150 (1962); Marcus, Problems of Compensability in Cardiovascular Disease Cases, vol. no. 492-503 Ins.L.J. (No. 500 Sept. 1964) p. 517; Mazel, Trauma and Coronary Heart Disease, 5 Trauma (5) 3 (1964); O'Herin, Cardio-Vascular Cases Under F.E.L.A., 10 Def.L.J. 87 (1961); Putman, The Relationship of Effort or Stress to Coronary Heart Disease, 17 Ark.L.Rev. 39 (1962); Somerville, Coronary Heart Disease: Relation to Effort, 3 Medicine, Science and the Law (3) 172 (1963); Sprague, Legal Aspects of Coronary Artery Disease, 28 Ins.Counsel J. 154 (1961); White, Trauma, Stress and the ‘Arteriosclerotic‘ Heart (Coronary Heart Disease), 2 Med.Trial Tech.Q. (2) 1 (1955); see only Levine, Exercise and Heart Disease, 212 Atlantic Monthly (July 1963) 42; White, Sudden Death, 212 Atlantic Monthly (Oct. 1963) 75.

6.   Plaintiff points to a letter written by Dr. Monahan as additional evidentiary support for the verdict.   The letter was written in January 1962 to plaintiff's wife, who had apparently sought information regarding the doctors' reasons for preventing her husband's return to work.   Dr. Monahan's letter bore an approving endorsement by the chief surgeon of the Southern Pacific General Hospital.   The letter stated in part:  “Our findings indicated that your husband was suffering from generalized arteriosclerosis, which is a hardening and narrowing of the arteries.   The vessels in his legs and heart are the ones most involved.  The pain he complains of in his chest is commonly called angina, and indicates that under these conditions the heart is not getting enough nourishment.“Your husband's occupation is one which has a great deal of responsibility and emotional stress involved, and it was felt that to continue this occupation, it might aggravate his condition or even endanger his life.”To appraise this letter as a statement of work-caused arteriosclerotic aggravation distorts the writer's intent.   To all appearances Dr. Monahan was telling Mrs. Waller that, in view of her husband's advanced arteriosclerosis, the emotional strain of his job would expose him to disabling or fatal heart attack.   Although the phrase “aggravate his condition” presents a surface or literal consistency with plaintiff's thesis of work-produced disability, the doctor was apparently equating “aggravation” with the disability which would follow a heart attack.   Dr. Monahan so explained the letter in the course of his trial testimony.   The heart attack, of course, was a risk which was never fulfilled.   We question but do not pass upon the letter's status as affirmative rather than impeaching evidence.

7.   See Arais v. Kalesnikoff, 10 Cal.2d 428, 432, 74 P.2d 1043, 115 A.L.R. 163;  Kernshaw v. Tilbury, 214 Cal. 679, 692, 8 P.2d 109;  Maryland Casualty Co. v. Industrial Acc. Com., 64 Cal.App.2d 162, 166, 148 P.2d 95.

8.   E.g., Universal Sales Corp. v. California, etc., Mfg. Co., 20 Cal.2d 751, 766, 128 P.2d 665.

9.   E.g., Daly v. Wallace, 234 Cal.App.2d 689, 692–693, 44Cal.Rptr. 642;  Ideal Packing Co. v. Brice, 132 CAl.App.2d 582, 585, 282 P.2d 957;  Khan v. Southern Pac. Co., supra, 132 CAl.App.2d at p. 415, 282 P.2d 78;  Sim v. Weeks, supra, 7 Cal.App.2d at p. 40, 45 P.2d 350.

10.   See Small, Gaffing at a Thing Called Cause:  Medico-Legal Conflicts in the Concept of Causation, 31 Texas L.Rev. 630–659;  McNiece, op. cit. supra fn. 5, at pp. 134–137;  Powers, After All, Doctors Are Human, 15 U.Fla.L.Rev. 463–486.

11.   Hart and Honore, Causation in the Law (1959) pp. 58–78, 85;  Prosser on Torts (3d ed.) pp. 282–288;  see, however, Green, Judge and Jury (1930) pp. 186–195.

12.   An apt example occurs in the course of Dr. McIntosh's cross-examination.   In response to a question whether arteriosclerosis is “caused by heredity,” the doctor replied that heredity is not a cause, that the disease is an “inheritable condition” and there is a “corollary” between the two factors.   At another point, he speaks of conditions “predisposing” to arteriosclerosis but asserts that “the cause” has not been discovered.  (See fn. 3, supra.)

13.   The conventional phrase “judicial notice” is available to justify judicial resort to text statements of scientific and sociological findings.  (1 Wigmore on Evidence (3d ed. 1940)pp. 145–146;  Louisell and Williams, The Parenchyma of Law, pp. 39–43 (1960);  see Note, Judicial Notice—Diseases, 72 A.L.R.2d 554, 577–580.)   California courts take notice of medical facts known to laymen, e.g., Wolfsmith v. Marsh, 51 Cal.2d 832, 835, 337 P.2d 70, 82 A.L.R.2d 1257.   We resist use of the phrase here, where statements of medical knowledge are utilized not as evidence of a fact, but to test the meaning of evidence.

14.   FELA heart cases include:  Angst v. Great Northern Ry. Co., D.C., 131 F.Supp. 156;  McGuigan v. Southern Pacific Co., supra, 112 Cal.App.2d 704, 247 P.2d 415 and 129 Cal.App.2d 482, 277 P.2d 444;  Kansas City Southern Ry. Co. v. Norwood (Okla.) 367 P.2d 722.  Additional FELA cases are collected in O'Herin, op. cit. supra fn. 5., pp. 87–100.   Workmen's compensation decisions involving heart claims are collected in McNiece, op. cit. supra fn. 5, at pp. 139–566;  Mazel, op. cit. supra fn. 5, pp. 11–30.

15.   Sprague, op. cit. supra fn. 5, at p. 159;  see also Putman, op. cit. supra fn. 5, p. 39.

16.   Mazel, op. cit. supra fn. 5, 5 Trauma (5) pp. 5–7.

17.   Dnewicz, op. cit. supra fn. 5, p. 323;  Somerville, op. cit. supra fn. 5, pp. 173–176.

18.   White, Trauma, Stress and the “Arteriosclerotic” Heart (Coronary Heart Disease) (supra fn. 5) 2 Med.Trial Tech. Q. (2) at p. 7 (1955);  White, Sudden Death (supra fn. 5) 212 Atlantic Monthly (Oct. 1963) at p. 77.

FRIEDMAN, Justice.

PIERCE, P.J., and REGAN, J., concur.